Devender vs State
2011 Latest Caselaw 5127 Del

1#$~
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.REV.P. 484/2007
%                                                Decided on: 18th October, 2011


       DEVENDER                                                 ..... Petitioner
                                   Through:   Mr. D.K. Sharma, Advocate.

                          versus
       STATE                                                     ..... Respondent
                                   Through:   Mr. Mukesh Gupta, APP

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may              Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                     Yes

3. Whether the judgment should be reported                Yes
   in the Digest?

MUKTA GUPTA, J. (ORAL)

1. By the present petition the Petitioner seeks setting aside of the order

dated 17th July, 2007 passed by the learned Additional Session Judge

upholding the order of conviction of the Petitioner passed by the learned

Metropolitan Magistrate under Sections 304A and 279 IPC, though the

order on sentence was modified. Learned Additional Sessions Judge

reduced the sentence awarded to the Petitioner under Section 279 IPC to

Rigorous Imprisonment for three months and a fine of Rs. 500/- and in

default to further undergo Simple Imprisonment for five days and under

Section 304A IPC, Rigorous imprisonment of nine months and a fine of Rs.

1,500/- and in default of payment of fine to further undergo simple

imprisonment of 15 days. The learned Metropolitan Magistrate vide order

dated 5th August, 2006 had sentenced the Petitioner to undergo Rigorous

Imprisonment for 6 months for offence punishable under Section 279 IPC

and a fine of Rs. 500/- and in default of payment of fine to undergo simple

imprisonment for five days. Rigorous Imprisonment for 1 year and Rs.

1,500/- fine under Section 304A IPC, in default of payment of fine to

undergo Simple Imprisonment for fifteen days.

2. Briefly the prosecution case is that on 28th January, 2000 at about

4.30-4.45 p.m. near Chhatta Rail Chowk Shahjad, the Petitioner was driving

the bus bearing No. DL-1PA-4579 in a rash and negligent manner and

without waiting for the passenger Naushad to get down he started the bus at

a fast speed due to which Naushad fell down. Shahjad the brother of

Naushad was present with him during this time. The bus was stopped after

the crossing and Shahjad got down, came back to the place where his brother

was lying. Nuashad was removed to Hindu Rao Hospital where he

succumbed to injuries and died on 14th February, 2000. On the basis of the

statement of Shahjad FIR was registered under Sections 279 IPC. After the

death of Naushad Section 304A IPC was added. After completion of

investigation charge sheet was filed. Learned Metropolitan Magistrate

after recording the prosecution evidence and statement of the accused

convicted and sentenced him as mentioned above. Aggrieved by the

judgment and order on sentence, the Petitioner preferred an appeal wherein

the sentence was modified by the learned Additional Sessions Judge vide

order dated 17th July, 2007.

3. Learned Counsel for the Petitioner contends that the impugned

judgments are based on conjectures and surmises. Learned courts below

failed to appreciate the fact that neither the deceased nor his brother Shahjad,

the complainant had informed the driver that they intended to get down from

the bus, where the deceased allegedly got down was not the bus stop and no

passenger was supposed to get down from the bus. As per the admission of

the complainant himself the deceased and the complainant were guilty of

violating the traffic rules. Learned Counsel contended that no negligence or

rashness has been proved by the prosecution. Learned Courts below have

failed to take into consideration that in the post mortem report/MLC there is

no mention of any crush injuries specially in the circumstances where the

prosecution has claimed that the deceased was run over under rear wheel of

the offending vehicle. The MLC was not proved by the prosecution nor any

expert opinion was taken with respect to the injuries. The testimony of PW4

that is Shahjad is not trustworthy since he is an interested witness being the

brother of the deceased and has lodged the complaint with an ulterior motive

of claiming compensation. No passenger of the bus has been examined by

the prospection to prove its case though it is stated that there were other

passengers present in the bus when the alleged accident took place. Thus,

in the absence of any evidence to support the Prosecution story and the fact

that the injuries sustained by the deceased were because of his own

negligence and fault, the impugned judgments are liable to be set aside.

4. Per contra learned APP for the State submits that impugned judgments

suffer from no illegality. The Petitioner was arrested at the spot of the

incident by the police. PW4, who was present along with the deceased, has

completely supported the prosecution case and has duly identified the

Petitioner. There are no contradictions in the testimony of witnesses and

evidence placed on record clearly implicates the Petitioner. Hence the

revision petition is liable to be dismissed.

5. I have heard the learned Counsels for parties and perused the record.

6. PW4 Shahjad the brother of the deceased has deposed that on 28th

January, 2000 he along with his younger brother Naushad boarded Bus

No.4579 from Sagar Pur from Old Delhi Railway Station. He sat on the seat

behind the driver and the deceased was also on the same seat. At about 5.30

p.m. when the bus reached Chhatta Chowk both of them told the driver to

de-board them at red light, he deboarded from the bus but when his brother

tried to deboard from the bus the bus driver in a very high speed drove the

bus due to which his brother fell on the road and came under the rear wheels

of the bus. On this he raised an alarm to stop the bus and the bus was

stopped there. The driver was apprehended by the police. He took his

brother to Hindu Rao hospital where he died. This witness in his cross-

examination has admitted that near about 20 passengers were present in the

bus and the police did not record the statement of any other passenger before

him.

7. PW2 HC Harnam Singh has deposed that on the relevant date he was

posted at PS Kotwali and at about 5.00 p.m. on receipt of a call about the

accident, he reached the spot. This witness in his cross-examination has

stated that the accident did not happen in his presence and admitted that

when they reached the spot the injured had already being removed to the

Hospital. This witness has further stated that the spot is a busy place, having

a traffic flow. The petitioner in his statement under section 313 CrPC has

stated that when he stopped the bus at the red light signal as soon as he

stopped the bus the signal turned to green. Consequently he drove the bus.

At that time the speed of the bus was about 10 km/h. the deceased and his

brother had not informed him before getting down at the red light signal. He

has deposed that the deceased was carrying something in both his hands and

fell down from the bus as he jumped from the moving bus.

8. The essential ingredients to constitute an offence punishable under

Section 279 IPC are that there must be rash and negligent driving or riding

on a public way and the act must be so as to endanger human life or be likely

to cause hurt or injury to any person. For an offence under Section 304A,

the act of accused must be rash and negligent, which should be responsible

for the death which does not amount to culpable homicide. The prosecution

in the present case has failed to prove how the act of the Petitioner was rash

or negligent to bring the same under the purview of Sections 279/304A IPC

specially when the deceased was getting down at red light and not the

regular bus stop.

9. The Hon'ble Supreme Court in Mohammed Aynuddin vs. State of

Andhra Pradesh, (2000) 7 SCC 72 held that:

" 5. A passenger might fall down from a moving vehicle due to one of the following causes: It could be accidental; it could be due to the negligence of the passenger himself; it could be due to the negligent taking off of the bus by the driver. However, to fasten the liability with the driver for negligent driving in such a situation there should be the evidence that he moved the bus suddenly before the passenger could get into the vehicle or that the driver moved the vehicle even before getting any signal from the rear side.

6. A driver who moves the bus forward can be expected to keep his eyes ahead and possibly on the sides also. A driver can take the reverse motion when that driver assures himself that the vehicle can safely be taken backward.

7. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus.

8. The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence, the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer.

9. A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any

individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.

10. Hence keeping in view the circumstances of the present case, the

impugned order convicting the Petitioner is set aside. The Petitioner is

acquitted of the charges punishable under Section 279/304A IPC. The

petition is accordingly allowed. The bail bond and surety bond of the

Petitioner are discharged.

Petition stands disposed of.

( MUKTA GUPTA ) JUDGE

OCTOBER 18, 2011 vn